Tort - Defences to Negligence (6) Flashcards
What is the defence of consent?
Consent: The Defendant may be able to rely on the fact the Claimant freely and knowingly consented to the risk of harm caused by the Defendant.
(1) Grounds: The Claimant must freely and willingly consent to the Defendant’s action, with full knowledge to the nature and extent of risk (Morris v Murray).
>Knowledge alone is not consent, there must be willing acceptance (sciencs non est volens).
(2) Exclusion: Consent is not permitted in the following instances:
Road Traffic Offences: Once cannot consent to a risk produced by a road user in a vehicle that requires insurance by law (s149 Road Traffic Act 1988).
Employment: Generally, employees cannot consent to employer negligence, as their consent is not ‘free’, employment is a form of fiscal duress (Smith v Baker).
Rescue: Generally, rescuers cannot consent to risk of harm when rescuing, as their consent is either conditional on moral compulsion or fiscal duress (Haynes v Harwood).
What is the defence of illegality?
Illegality: The Defendant may rely on the fact that the Claimant was harmed as part of an illegal enterprise that both were part of, as there is ‘no duty between criminals’ (Pitts v Hunt).
(1) Grounds: The Claimant suffered harm in a criminal activity, and it would offend public policy to award them remedy (Jetivia v Bilta).
>I.e. (A) robs a bank, (B) is a getaway driver, and crashes injuring (A).
(2) Exclusion: Occupiers cannot rely on the fact that a trespasser was committing a crime to absolve themselves of liability under the OLA 1984 (Revill v Newbury).
What is the defence of necessity?
Necessity: The Defendant may rely on the fact that their action was necessary to prevent greater harm or protect their own life or limb.
(1) Grounds: The Defendant must show that there was an immediate threat, no alternative course of action, and that the harm caused by their actions was proportionate.
(2) Exclusion: If the damage caused was greater than the harm that was prevented, then the defence generally cannot be relied upon.
How is liability excluded?
Exclusion of Liability: Defendants are often able to exclude liability for harm caused if they adequately notified Claimants through use of signs. This differs by scenario.
What is contributory negligence?
Contributory Negligence: Contributory negligence is a partial defence, apportioning some liability to the Claimant for their own careless contribution to their harm (Law Reform (Contributory Negligence) Act 1945).
(1) Contribution: The Claimant must have contributed to the damage, irrespective of the cause of action.
>(A) crashes into (B) because they are not looking. (B) is not wearing a seatbelt, suffering more than necessary injuries. Whilst (B) did not contribute to the cause of action, they did contribute to their harm.
(2) Carelessness: The Claimant’s actions must have fallen below the reasonable expectation of the ordinary person in their position in order to be careless (Blyth v Birmingham).
Children: Children are held to the ordinary child of their age (Gough v Thorne). The careless actions of their parents are irrelevant, though they may be pursued for a contribution or as a secondary tortfeasor.
Rescue: Rescuers are held to the standard of the ordinary rescuer, however their actions must be wholly unreasonable to be careless (Baker v TE Hopkins).
Employee: Employees are less likely to be deemed careless if they work in repetitive, dull or noisy workplaces.
Reaction: A reaction to a danger created by the Defendant is not careless unless grossly unjustified or disproportionate (Sayers v Harlow).
Drunk Driving: Accepting, or being too intoxicated to recognise, a lift from a drunk driver is careless (Owens v Brimmell).
(3) Effect: Contributory negligence reduces the damages payable to the Claimant, by a sum representing their contribution to the harm (Reeves v Metropolitan).
Seatbelts/Helmets: Failure to wear a seatbelt or helmet means (Froom v Butcher; Capps v Miller):
Wholly Avoidable Injuries: Reduction of 25%.
More Than Necessary Injuries: Reduction of 15%.
Same Injuries Either Way: No reduction.
